…as Concourt rules Mosito reappointment unconstitutional
THE government has been dealt a massive blow after the Constitutional Court ruled that Justice Kananelo Mosito cannot be appointed to head the country’s top court, the Court of Appeal, because he “is not a fit and proper person” for the sumptuous job.
Unless the government begins the process of finding an alternative candidate for the job, the judgement is likely to inflict further adverse impact on the administration of justice in the country. The top court has not been sitting after a group of lawyers opted to challenge Prime Minister Thomas Thabane’s August 2017 decision to appoint Mr Mosito as President of the Court of Appeal. Dozens of appeals are now pending before it.
The Constitutional Court bench comprising of Namibian judges, Ezer Hosea Angula and Shafiname Fikameni Immanuel Ueitele and South African judge, Mojalefa Rampai, this week ruled that Justice Mosito’s appointment was in breach of the provisions of the national constitution because he was not a fit and proper person to hold judicial office as required by the constitution. This because a lawful tribunal comprising of eminent jurists had previously recommended his impeachment over tax evasion issues. The findings of that tribunal were never challenged successfully in a competent court of law.
The Constitutional Court judgment, which effectively ends Justice Mosito’s career prospects on the bench, follows a court challenge filed by four lawyers who approached the court seeking the nullification of the 1 August 2017 re-appointment of Justice Mosito as president of the apex court.
Justice Mosito was initially appointed by Dr Thabane during his first tenure as Prime Minister in January 2015. When Democratic Congress leader, Pakalitha Mosisili, took over from Dr Thabane after the February 2015 snap elections, he began a process of removing Justice Mosito.
Justice Mosito subsequently resigned in the wake of the establishment of a tribunal to determine his fitness to hold office over allegations that he had evaded paying taxes. The tribunal had recommended his impeachment, finding that he had indeed failed to honour his tax obligations and he had acted unlawfully in investigating his fellow judges to establish if they had also paid their taxes as he sought information to advance his cause.
When Dr Thabane returned to power after winning the 3 June 2017 elections, he re-appointed Justice Mosito in place of Justice Robert Nugent who had been appointed to head the apex court by Dr Mosisili.
But the re-appointment of Justice Mosito on 1 August 2017 immediately torched a storm with four lawyers going to court to stop him from assuming office.
The quartet of King’s Counsel Zwelakhe Mda, Karabo Mohau, Motiea Teele and attorney Qhalehang Letsika argued that Justice Mosito was unfit to hold that office because of the previous tax charges that he faced.
High Court judge, Justice Semapo Peete, had cleared Justice Mosito of 19 counts of tax-related criminal charges in October 2017.
However, the quartet argued that Justice Mosito was not fit for the office because an impeachment tribunal established by Dr Mosisili found him guilty of violating tax laws and recommended that he be removed from the presidency of the highest court in the land. The findings of the tribunal had not been successfully challenged in a court of law, they argued.
The three constitutional court judges had subsequently reserved judgment in December 2017 after lengthy arguments between the lawyers representing the applicants and the respondents. The respondents were Justice Mosito and Dr Thabane, King Letsie III, the attorney-general and the Law Society of Lesotho.
And on Tuesday, the three judges delivered two separate judgments, a majority and a minority judgment. Both judgments agreed that Justice Justice Mosito was not “a fit and proper person” to hold the office of President of the Court of Appeal and that he had been unlawfully appointed. The judgments nonetheless advanced slightly different reasons for the similar verdict.
High Court judge, Justice Tšeliso Monaphathi, who read the verdict on behalf of the three judges said the two judgments only differed on the ratio decidendi (a legal term which means the reason(s) for the verdict) by the judges who presided over the case.
The majority judgment was made by Justices Angula and Rampai, while the minority judgment was made by Justice Ueitele.
In the majority judgment, the judges found that Justice Mosito was not fit to hold office because his predecessor, Justice Robert Nugent, was not removed in compliance with the law and also because of the findings of the tribunal that was set by Dr Pakalitha Mosisili’s government to impeach him.
They “declared that the removal of Mr Justice Robert Nugent from office as President of the Court of Appeal is null and void and of no force and effect to the extent that the provisions of section 125 of the constitution were not met”.
“The decisions of the second respondent (PM Thabane) to recommend the appointment of the first respondent (Justice Mosito) to His Majesty and the subsequent appointment are reviewed and set aside as irregular and unconstitutional.
“It is declared that the appointment of the first respondent is unconstitutional in that he is not a fit and proper person to hold judicial office by virtue of the findings of misbehaviour(s) which rendered him unfit for such office which findings were made by a tribunal duly appointed in terms of sections 125 of the constitution.”
The orders were made after the two judges concluded that the removal of Justice Mosito from the seat in December 2016 was lawful while the removal of Justice Nugent to pave way for re-appointment of Justice Mosito in August last year was unlawful.
“It must, therefore be appreciated that each of the preceding removals, one lawful the other unlawful, posed insurmountable obstacles for re-appointment of the first respondent (Justice Mosito).
“His continuing unfitness for the office was not his one and only impediment to the throne. He had another mountain or two to climb,” reads the judgment.
The judgment further states that “The indications are clear that the second respondent (Dr Thabane) did not openly apply his mind to the legal consequences of the two earlier removals”.
“It appeared to us that if he did, which we doubt, he did not properly consider the constitutional weight, impact and consequences of the findings of the tribunal.
“Had he done so, then he would probably have realised that the first respondent had been found unfit for the office; that he was discredited or disqualified by a constitutionally appointed tribunal; that the tribunal consisted of three eminent foreign judges and that he, as the Prime Minister, had virtually no power in law to undo such findings by simply re-appointing the first respondent to the same office from which he was lawfully removed earlier on and that such office was still occupied by a lawfully appointed and esteemed judge.”
The two judges also strongly criticised the decision by Dr Thabane to recommend re-appointment of Justice Mosito as president of the Court of Appeal.
“Given all the peculiar circumstances of this particular case, we have come to the unanimous final conclusion that the second respondent indeed acted unreasonably, arbitrarily and irrationally in re-appointing the first respondent.”
The judges were also scathing in their assessment of Justice Mosito’s motives in resigning ahead of the presentation of the impeachment tribunal’s findings in 2016.
“On his own say-so, the first respondent (Justice Mosito) resigned because he pre-empted the adverse findings by the tribunal. His was not a genuine resignation of an employee who voluntarily and honestly wanted to relinquish his post.
“Quite contrary to that, his conduct had all the hallmarks of a deliberate ploy to frustrate a due process of law. There is every reason to believe that the first respondent was, shortly before he wrote his purported resignation, advised by his attorneys about the unfavourable decision of the tribunal.”
Justice Ueitele, in his minority judgment, found that it was not necessary to pronounce himself on the removal of Justice Nugent in order to reach the verdict that Justice Mosito was not a fit and proper person for the top judicial job.
“Having arrived at the conclusion that the second respondent has acted unconstitutionally when he recommended the appointment of first respondent as president of the Lesotho Court of Appeal I find it unnecessary to deal with the question of the removal of Judge Nugent.
“I therefore, make the following order: The decisions of the second respondent to recommend the appointment of the first respondent to His Majesty and his subsequent appointment as president of the Court of Appeal of Lesotho are reviewed and set aside as irregular and unconstitutional.”
The net effect of the latest judgement is to further delay the sitting of the Court of Appeal with a direct impact on the administration of justice in Lesotho since it is the highest court in the land.
According to well-placed sources, dozens of cases from the High Court and the Commercial Division of the High Court await hearing in the Court of Appeal. The adverse impact can only be averted if the government moves quickly to find a replacement for Justice Mosito.